Opinion
A144858
08-02-2017
THE PEOPLE, Plaintiff and Respondent, v. PHILLIP STONE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 05-142196-5)
Following a jury trial, defendant Phillip Stone was convicted of all five charged counts arising from a traffic stop and subsequent car chase: evading a peace officer while driving recklessly (Veh. Code, § 2800.2, subd (a); count 1) and in opposing traffic lanes (Veh. Code, § 2800.4; count 2), being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1); count 3) and ammunition (§ 30305, subd. (a); count 4), and possession of an assault weapon (§ 30605, subd. (a); count 5).
Further undesignated statutory references are to the Penal Code.
On appeal, defendant contends the trial court erred in excluding evidence of third party culpability. He also asserts two sentencing errors. First, he contends the court erred in imposing the upper term for all five counts without giving reasons for doing so. Second, he argues the abstract of judgment incorrectly fails to reflect that three of the terms were stayed pursuant to section 654. The Attorney General concedes the second claim of sentencing error.
We accept the Attorney General's concession and will direct the trial court to correct the abstract of judgment. We otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution's Case
On the evening of September 14, 2014, Contra Costa County Sheriff's Deputy Matthew Buckley was patrolling the area of Martinez and Bay Point. He was in uniform and drove a marked Sheriff's patrol vehicle. Around 7:10 p.m., while driving northbound on Port Chicago Highway, Buckley stopped for a traffic light at the intersection of Pacifica Avenue. As he slowed down, Buckley saw a green four-door Chrysler sedan waiting on Pacifica Avenue to his left. He noted that the front wheels of the Chrysler were inside the crosswalk. He could see the passenger in the front seat was "a light skinned male adult, possibly Hispanic or white." When the light turned green for the Chrysler, it turned left onto Port Chicago Highway traveling northbound.
Buckley turned on his patrol car's overhead emergency lighting and conducted a traffic stop of the green Chrysler for the crosswalk violation. The Chrysler pulled over on the shoulder of the road. Buckley gave the license plate number to dispatch, which reported the registration for the car was expired. He parked about three to five feet behind the Chrysler and walked toward the driver's side of the stopped car. As he approached, Buckley looked through the back windshield and at the center rearview mirror and the driver's side mirror. Through the driver's side mirror, he saw the driver's face from about his nose to the top of his forehead and saw that the driver was watching him through the mirror. The driver was wearing a baseball style shirt with blue sleeves and a white body. Buckley noted that the driver appeared to be a Black male adult with short cropped hair, about 25 to 30 years old. The driver looked over his left shoulder, and Buckley briefly saw his profile and did not notice any significant facial hair. There were only two occupants in the Chrysler, the driver and the front-seat passenger.
When Buckley reached the rear passenger door of the Chrysler, the car suddenly sped off. Buckley returned to his patrol car, reported to dispatch that the car had fled, and turned on his siren. His emergency lights were still on. He pursued the green car as it headed southbound on Port Chicago Highway at 80 miles per hour in a 35-m.p.h. zone, ran red lights, and crossed over double yellow lines, thereby driving the wrong direction in the northbound lanes. The car turned left onto Willow Pass Road and then right into a residential neighborhood. The car reached speeds of 50 miles per hour in a 25-m.p.h. zone and failed to stop at two stop signs. From about 50 feet away, Buckley saw the car enter the De Anza Gardens apartment complex. The complex was two blocks wide and four blocks deep with multiple streets or paths running through it. Buckley slowed down for pedestrians and lost sight of the car. The pursuit lasted about three minutes and covered about two miles.
After Buckley lost sight of the green Chrysler, he continued looking for the car in the apartment complex. Dispatch relayed to Buckley an anonymous tip directing him to apartment 101 of De Anza Gardens. Dispatch also informed him that the registered owner of the Chrysler was Phillip Stone (defendant). Buckley parked and walked toward a group of about six men and women standing in front of apartment 101. Three or four people walked into apartment 101, and two men turned and started walking toward Buckley. The deputy detained the two men, defendant and Jimmy Lee Thomas, to see if they had any information. Buckley noticed that defendant "appeared to be" the driver of the green Chrysler. He released Thomas and eventually arrested defendant. Buckley estimated about five or six minutes elapsed between the time he lost sight of the Chrysler and when he saw defendant in front of apartment 101.
At trial, the prosecutor asked whether Buckley recognized defendant as someone he had seen earlier. Buckley responded, "The individual who was walking towards me wearing the white shirt with long blue sleeves appeared to be the same individual who was driving the vehicle that I saw on the traffic stop that fled from me. He is the same. He was a black male adult who appeared to be 25 to 30 years old, and specifically the shirt was the same shirt that I had seen earlier."
When Buckley first saw defendant in front of apartment 101, defendant was standing about three to five feet from a large bush that was located in front of and to the right of apartment 101. Looking in the bush, Buckley found a zippered blue leather bag. He had to separate some branches to find the bag, which was hidden one or two feet from the front of the bush. Buckley unzipped the bag and found a silver and black Intra Tech brand AB10 assault pistol, which was loaded with a magazine. There was a live cartridge in the firing chamber, and the magazine held 11 additional nine-millimeter cartridges. Also in the bag was a left-hand nonslip work glove.
Meanwhile, Buckley's partner, Deputy Anthony Rossi, found the green Chrysler parked on Pueblo Avenue about 150 or 200 yards from apartment 101. He found a right-hand glove on the floorboard on the driver's side that appeared to be the mate of the work glove found in the blue leather bag. Rossi also found two cell phones in the car.
Rossi explained that he and Buckley were "beat partners" that shift, meaning they worked in tandem to handle calls for services throughout Bay Point, but they were in separate patrol cars.
Rossi conducted a search of the green Chrysler. He also found a "female style wallet" that contained a woman's California driver's license. Rossi did not find any other identification cards in the car, and he did not follow up with the woman whose driver's license was found in the car.
A Sheriff's detective was able to extract about 30 images with date stamps from the memory card of one of cell phones found in the green Chrysler. Some of the images on the cell phone were of defendant, and an image taken on July 9, 2014, showed an Intra Tech AB10 assault weapon that appeared to be the same weapon found in the blue leather bag.
An image taken on April 27, 2014, showed defendant with three small children and a woman at what appeared to be an amusement park.
The prosecution also presented evidence of a prior incident in which defendant fled from law enforcement and tried to hide a firearm. In October 2004, Antioch Police Officer Tony Detomasi pulled defendant over for a traffic stop. Defendant got out of his car, and Detomasi told him he was going to search his person. Before the officer was able to pat him down, defendant ran. Detomasi followed and saw defendant trying to remove something from his jacket pocket as he ran. Detomasi lost sight of defendant, but he was detained by another officer about 15 or 20 minutes later. A .22-caliber revolver with live cartridges and spent casings was found in the area where defendant fled. Defendant told Detomasi that he ran because did not want to be caught in possession of a gun. A box of .22-caliber ammunition and a bag of shotgun rounds were later found in defendant's car.
The trial court found this evidence admissible as relevant to intent, knowledge, and absence of mistake under Evidence Code section 1101, subdivision (b).
Defense Case
In cross-examining Buckley, defense counsel attempted to undermine his identification of defendant as the driver. Buckley reported to dispatch that the car he was pursuing was possibly an older model Buick or Pontiac, although it was actually a Chrysler Concorde. He described the driver to dispatch as "a black male adult," with no other description (such as age, build, or clothing). Although he testified he could see the driver's profile and clothes as he approached the car during the traffic stop, Buckley could not recall whether the driver's side window was rolled up or down or whether the driver's seat had a headrest. Asked about the front-seat passenger (whom Buckley observed as he approached the intersection of Pacifica Avenue), Buckley could not recall anything about the passenger's clothes or hairstyle or whether he had facial hair. In his police report and supplemental report, Buckley did not write that he saw the driver's profile or that he saw the driver's face through a mirror. At trial, Buckley testified that the driver had a slim build, but he never mentioned the driver's build to dispatch, in his written reports, or in the preliminary hearing.
Defense counsel elicited from Buckley that, when he detained defendant and Thomas, one of the first questions he asked defendant was his name. (By that time, Buckley had been informed that defendant was the registered owner of the Chrysler.) He testified he could tell that Thomas was not the driver or the passenger of the green car. But he agreed that Thomas was a Black male with a similar skin tone to defendant. Buckley used gloves when he removed the weapon from the blue bag and requested that the weapon be dusted for fingerprints. He did not find any weapons or keys on defendant, and car keys for the green Chrysler were never found.
The defense did not call any witnesses, and defendant did not testify. Instead, the defense "rel[ied] on the state of the evidence." In her closing argument, defense counsel told the jury, defendant "was not the driver of the green car that night, and he did not possess the assault weapon that was found in the blue bag in the bush." She argued that Buckley "jumped to the conclusion, made the assumption that the owner of the vehicle was the driver" and urged the jury to not make the same assumption. She suggested "a friend, family member, someone else" could have been driving the car when Buckley made the traffic stop. She argued that the glove found in the car that matched the glove found in the blue leather bag might connect the car to the bag, but was not evidence that defendant was driving the car that evening.
Defense counsel pointed to the lack of evidence. For instance, Buckley requested fingerprint analysis of the assault weapon, but no fingerprint evidence was presented at trial. Although there were pedestrians at the De Anza Gardens and at least five potential witnesses standing in front of apartment 101, there was no eyewitness testimony from anyone other Buckley. She argued that the key to the green Chrysler was likely with the driver, and the key was never found (it was not on defendant's person or in the blue leather bag) because the driver was never found.
Finally, defense counsel questioned Buckley's ability to identify the driver of the green Chrysler. She pointed out that he was mistaken about the model of car involved in the pursuit. During the pursuit, Buckley gave Rossi a generic description of the driver as a "black male adult," but his testimony at trial was much more detailed. Defense counsel surmised that, after Buckley found defendant in front of apartment 101 (and with the knowledge that defendant was the registered owner of the green Chrysler), "his mind started to fill in the gaps in his memory."
Verdict and Sentence
As we have mentioned, the jury found defendant guilty of evading a peace officer while driving recklessly (Veh. Code, § 2800.2, subd (a); count 1), evading a peace officer while driving in opposing traffic lanes (Veh. Code, § 2800.4; count 2), being a felon in possession of a firearm (§ 29800, subd. (a)(1); count 3), being a felon in possession of ammunition (§ 30305, subd. (a); count 4), and possession of an assault weapon (§ 30605, subd. (a); count 5).
The parties stipulated that defendant had been convicted of a prior felony.
In a bifurcated court trial, the trial court found defendant had four prior felony convictions, two of which were prison priors under section 667.5, subdivision (b). Defendant was sentenced to five years in prison, consisting of the upper term of three years for count 1, plus two one-year terms for the prior prison terms.
DISCUSSION
I. Exclusion of Evidence of Thomas's Prior Conviction
Defendant contends the trial court erred in excluding "third-party culpability evidence" regarding Jimmy Thomas, who was detained along with defendant in front of apartment 101. Specifically, defendant hoped to introduce evidence of Thomas's prior misdemeanor conviction of a firearm-related offense.
A. Background
In December 2010, a police officer heard three gunshots, and officers responded to the area the shots sounded from. The officers detained three subjects, including Thomas, who was found with a .22-caliber semiautomatic handgun in his waistband. Thomas admitted he had shot the weapon straight up in the air three times. As a result of this incident, Thomas was convicted of a misdemeanor for carrying a loaded firearm on his person in a public place (former § 12031, subd. (a)(1), as amended by Stats. 2009, ch. 288, § 1), and placed on three years' probation.
The parties agreed to these facts of Thomas's offense.
The prosecutor filed a motion in limine to exclude any reference to Thomas's prior conviction as irrelevant "unless he is called to testify." At a pretrial hearing, defense counsel argued that evidence of Thomas's prior conviction "should be admitted as third-party culpability evidence" regardless of whether Thomas testified. She pointed out that Thomas was detained with defendant in the immediate vicinity of the bush where the weapon was found. Defense counsel conceded that the conviction could not be admitted to show propensity to commit the charged offenses, but she argued the conviction was relevant to show Thomas's "knowledge, lack of mistake, intent." In a later hearing, the prosecutor argued that evidence of a third party's motive or opportunity to commit the crime is not sufficient to raise a reasonable doubt about a defendant's guilt. Instead, there must be direct or circumstantial evidence linking the third party to the crime, which, she argued, "we don't have" in this case. The trial court was not convinced by defense counsel's argument for admission of Thomas's prior conviction on the theory it was relevant to show intent, knowledge, or absence of mistake. Citing People v. Hall (1986) 41 Cal.3d 826 (Hall), the court did not see any colorable theory for admitting evidence of the December 2010 incident or Thomas's conviction if Thomas did not testify, explaining it could not see how evidence that Thomas had a firearms offense four years earlier was "capable of raising a reasonable doubt of defendant's guilt." The court, however, wanted to know about Buckley's observations of the driver and passenger of the green car and his basis for identifying defendant as the driver before ruling. Therefore, it set a hearing under Evidence Code section 402 for Buckley to testify.
At the Evidence Code section 402 hearing, Buckley testified that, during the traffic stop, he reached the rear driver's side door, approximately a foot from the side of the car and one to two feet behind the driver. He estimated he was near the side of the car from the bumper to the rear driver's door for about five seconds. This was when he saw the driver's shoulder and the blue sleeve and white body of his shirt. Buckley saw the driver looking in the side-view mirror, and he saw the driver's profile when the driver turned toward his left. He was focused on the driver and did not notice anything about the passenger.
When he arrived at apartment 101, Buckley saw six or seven people in front of the apartment. Two individuals were standing with their backs to him. One was wearing a white baseball style shirt with long blue sleeves, and the other person, later identified as Thomas, "was a black male adult wearing a white T-shirt and had facial hair." Buckley testified that Thomas appeared to have a darker skin tone than the passenger of the green Chrysler, and Thomas "did not appear to be the same person that I saw—from what I remember seeing." Buckley testified that defendant "appeared to be the same person who was the driver." He was wearing the same style of shirt and "appeared to be the same age range and similar appearance." His identification of defendant was "predominantly based on clothing," rather than recognition of his face, but he also remembered that the driver was tall and slender. Buckley determined that Thomas was not the driver or the passenger of the green Chrysler. He testified, "His appearance was not the same as the person I saw in the driver seat. The clothing was different, and when the driver turned his head to the left and looked over his shoulder, the driver did not have any significant facial hair, and I remember Mr. Thomas having a small goatee on his chin."
According to Buckley, it was "pretty light" outside when he detained defendant and Thomas as it "was still summertime." He asked defendant and Thomas for their names and birthdates and gave that information to dispatch. Buckley heard from dispatch that several people had called in and reported seeing a Black male adult running from a green car and placing a blue bag in the bushes in front of apartment 101. Buckley did not learn about the blue bag until after he had detained defendant.
After Buckley completed his testimony, the trial court observed, "I just don't see a basis, based on the hearing that we just had, that would . . . move this from almost pure speculation to something more in tune with what the third-party culpability cases hold." Defense counsel responded, "it's going to be a disputed fact what observations Deputy Buckley was able to make of the driver of the car." She also stated that the defense was not conceding that the driver of the car necessarily possessed the blue bag. The trial court told defense counsel she was free to cross-examine Buckley and argue the evidence, but ruled Thomas's prior conviction was not admissible as evidence of third party culpability.
B. Analysis
"To be admissible, the third-party evidence need not show 'substantial proof of a probability' that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant's guilt. At the same time, we do not require that any evidence, however remote, must be admitted to show a third party's possible culpability. . . . [E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime." (Hall, supra, 41 Cal.3d at p. 833.)
" 'In assessing an offer of proof relating to [third party culpability] evidence, the court must decide whether the evidence could raise a reasonable doubt as to defendant's guilt and whether it is substantially more prejudicial than probative under Evidence Code section 352.' [Citations.] Evidence of a third party's prior crimes is inadmissible to establish the third party's criminal propensity. [Citations.] . . . A trial court's ruling excluding third party culpability evidence is reviewed for abuse of discretion." (People v. Elliott (2012) 53 Cal.4th 535, 580-581.)
Here, defendant wished to present evidence that Thomas had a misdemeanor conviction arising from his possession and discharge of a firearm four years before the traffic stop underlying the present criminal case. This evidence was not direct or circumstantial evidence linking Thomas to the perpetration of the charged crimes. Defendant points out that Thomas was present at the scene where the weapon was found. But "opportunity to commit the crime in another person, without more, [does] not suffice to raise a reasonable doubt about a defendant's guilt." (Hall, supra, 41 Cal.3d at p. 833.) Under defendant's theory, the criminal history of all the people present in front of apartment 101 could be introduced if their prior offenses somehow suggested intent, motive, or lack of mistake. We do not believe Hall requires such a result. Accordingly, we see no abuse of discretion in the trial court's ruling.
Certainly, defendant's argument for admitting evidence of Thomas's prior conviction would be equally applicable to almost any man found in the vicinity of apartment 101. Under defendant's theory, it could be argued that any Black man could have been the driver of the green car, and any man with a lighter skin tone could have been the passenger, and either the driver or the passenger could have possessed the blue leather bag with the firearm.
Defendant argues the trial court "determined that Evidence Code section 1101(b) evidence is so different it cannot be used as third party culpability evidence." Defendant acknowledges that the trial court stated the correct legal standard under Hall, but claims, "in actuality, the court treated such evidence very differently." Defendant's argument is not persuasive. The record shows the trial court stated the correct standard for considering the admissibility of proffered third party culpability evidence, heard the parties arguments on the issue over the course of three days, held an Evidence Code section 402 hearing on the issue, and carefully considered the evidentiary issue. The court's ruling, to exclude the proffered evidence, was within its discretion. We have no basis for finding error on a theory that the trial court misunderstood or misapplied the law.
Finally, we reject defendant's contention that the exclusion of evidence of Thomas's misdemeanor conviction unconstitutionally compromised his ability to present a defense. We have found no error under state law, and our high court has "long observed that, '[a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's [state or federal constitutional] right to present a defense.' " (People v. Robinson (2005) 37 Cal.4th 592, 624-627 [finding no abuse of discretion in excluding proffered third party culpability evidence and rejecting claim of violation of the right to present a defense based on exclusion of same evidence].) In the present case, defense counsel vigorously cross-examined Buckley and criticized his testimony and the state of the evidence in her closing argument. Having reviewed the record, we cannot say defendant was deprived of his right to present a defense.
II. Claimed Sentencing Errors
A. Background
A sentencing hearing was held on March 6, 2015. The court found the following circumstances in aggravation. Regarding the crime, it involved great violence or threat of bodily harm, defendant was armed with a loaded assault weapon, and defendant engaged in violent conduct indicating a serious danger to society. Regarding defendant, his prior convictions were numerous or increasingly serious, he served two prior prison terms, and his prior performance on probation or parole was unsatisfactory. The court found no mitigating circumstances.
Before hearing the parties' arguments, the court announced its tentative decision to impose the maximum legal sentence, which would be five years and eight months in prison. The court explained it would impose the upper term of three years for count 1, finding the offense more serious than other crimes of the same type, and then indicated it would impose the upper term for count 2, but stated that it believed it was required to impose one-third the middle term, which would be stayed under section 654. The court's tentative sentence also included eight months for count 3 to be run consecutively, plus one year for each of the two prior prison terms.
The court stated, "So I would impose then the upper term on Count One. I would impose the upper term on Count Two, three years but run it—I'm sorry, I think I have to impose one-third the midterm, of eight months and run it concurrent with Count One and order it stayed under [section] 654."
The court's tentative sentence also included eight months for count 3 to be run consecutively, plus one year for each of the two prior prison terms.
After hearing the parties' arguments, the trial court concluded it would impose a five-year sentence, by sentencing defendant on count 3 to an eight-month term (one-third of the middle term) to run concurrently with the three-year sentence on count 1, plus two one-year terms for the prior prison terms. As to the remaining counts, the court imposed an eight-month term for count 2, concurrent to count 1; an eight-month term for count 4, concurrent to count 3; and an eight-month term for count 5, concurrent to count 3. The terms on counts 2, 4, and 5 were each one-third of the middle base term. The trial court ordered the terms on counts 2, 4 and 5 all stayed under section 654. The abstract of judgment, however, did not reflect that counts 2, 4, and 5 were stayed.
In June, 2015, the Department of Corrections and Rehabilitation (CDRC) sent the trial judge a letter noting errors in the abstract of judgment and minute order and requesting a correction or clarification. As pertinent here, the letter noted that as to counts 2, 3, 4, and 5, the judgment and minute order reflected that defendant had been sentenced at "one third the middle term of 8 months and concurrent. The imposition of one-third the middle base term is only applicable when sentencing consecutively. The term levels for Counts 2, 3, 4 and 5 are all the lower term of 16 months, middle term of 2 years or upper term of 3 years. Please clarify." (Bolding and underlining in original.)
On July 24, 2015, the trial court held a hearing on the sentencing matter. The court stated, "[T]he law is that you only impose one-third of the midterm if you're imposing a consecutive sentence. If you're imposing concurrent sentences, there is no subordinate term. Therefore, the concurrent terms needs to be imposed at the upper term level." The court observed that this change would not change the five-year sentence.
Defendant was not present. The court asked defense counsel whether defendant wanted to appear, and she waived defendant's appearance. Defense counsel asked to incorporate her arguments, comments, and briefing from the March 2015 sentencing hearing, which the trial court interpreted as argument for the lower term. The trial court ordered, as a sentencing correction, that counts 2 through 5 were for the upper term of three years each, to run concurrently with the term for count 1.
B. Imposing Upper Terms for Remaining Counts
Defendant contends the trial court erred by sentencing all counts to the upper terms. He argues the court did not explain why it was selecting the upper term for counts 2 through 5 "except that . . . the court apparently thought . . . that it was required to select the upper terms if the principal term was the upper term."
The Attorney General correctly observes that defendant's claim is not that the court abused its discretion but rather that it did not exercise its discretion at all. Generally, a trial court is presumed to have been aware of and followed the law, including the law on sentencing discretion. (People v. Martinez (2017) 10 Cal.App.5th 686, 728.) Defendant relies on the trial judge's statement that the remaining terms "need[ed] to be imposed at the upper term level." But, taken in context, we do not read this statement as a misunderstanding of the law. The judge in this case was an experienced trial judge. In the initial sentencing hearing, the judge plainly exercised his sentencing discretion, thoroughly and painstakingly considering the sentencing factors and discussing his reasons for imposing the upper term for count 1. The judge further indicated that he would have imposed the upper term for count 2 had he not (mistakenly) thought that a one-third middle term was required. He found no circumstances in mitigation and many aggravating circumstances relating to defendant. Although the judge did not undertake the same analysis for counts 3, 4, and 5, the same factors in aggravation and absence of mitigating factors relating to defendant would apply to those counts. At the time of the second hearing, the judge had read the CDCR letter, which reminded the court of its discretion to impose the lower, middle, or upper term for each of counts 2 through 5. Given the record, it is apparent that the judge exercised his discretion at the July 24, 2015, sentencing correction hearing to impose the upper term for each offense based on the aggravating circumstances he stated in the initial sentencing hearing. In this context, the judge's statement that he "need[ed]" to impose the upper term is best understood as a statement that the court needed to correct the sentence in response to the CDCR letter, not that upper terms were required, which they plainly were not. In any event, defendant acknowledges that remanding the case for resentencing would not change the total sentence imposed of five years. This was the sentence originally imposed and the sentence imposed at the sentencing correction hearing on July 24, 2015.
C. Section 654
The corrected abstract of judgment reflects that the terms for counts 2 through 5 are concurrent and not stayed. The parties agree that the trial court stayed counts 2, 4, and 5 under section 654 at the initial hearing, and that the abstract of judgment must therefore be corrected. We agree with the parties and direct the trial court to correct the abstract of judgment to reflect that the terms for counts 2, 4, and 5 are stayed under section 654. (See People v. Mitchell (2001) 26 Cal.4th 181, 185-188.)
DISPOSITION
The trial court is directed to correct the abstract of judgment to reflect that the terms for counts 2, 4, and 5 are stayed under section 654. The trial court is further directed to forward the corrected abstract of judgment to the CDCR. In all other respects, the judgment is affirmed.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Richman, J.